Hardin v. Wal-Mart Stores, Inc., No. 1:2008cv00617 - Document 38 (E.D. Cal. 2009)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 22 Defendant's Motion to Dismiss; DISMISSING Second and Third Causes of Action With Leave to Amend, signed by Chief Judge Anthony W. Ishii on 9/17/2009. Plaintiff's Amended Complaint due by 10/8/2009, or if no Amended Complaint is Filed by This Date, Defendant's are Directed to File an Answer to the Original Complaint (Narrowed by this Order) Within Twenty (20) Days of That Date. (Jessen, A)
Download PDF
<![CDATA[
Hardin v. Wal-Mart Stores, Inc. Doc. 38 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 ZANE HARDIN, ) ) Plaintiff, ) ) v. ) ) WAL-MART STORES, INC.; and DOES ) 1-100, ) ) Defendants. ) ____________________________________ ) CIV-F-08-0617 AWI GSA ORDER RE: MOTION TO DISMISS 16 I. History1 17 18 Plaintiff Zane Hardin has been an employee of Defendant Wal-Mart for several years. 19 Though he has applied for several promotions, he has not received them. Plaintiff alleges that he 20 has been mistreated by supervisors and denied the use of a disabled parking spot though he is 21 disabled. 22 Plaintiff filed this case in state court on March 20, 2008. Plaintiff’s original complaint 23 contained four causes of action. Defendant removed the action to federal court based on 24 diversity jurisdiction and made a motion to dismiss. The motion was granted in part and denied 25 in part; Plaintiff was granted leave to amend. Plaintiff’s amended complaint states three causes 26 27 28 1 The factual history is provided for background only and does not form the basis of the court’s decision; the assertions contained therein are not necessarily taken as adjudged to be true. The legally relevant facts relied upon by the court are discussed within the analysis. 1 Dockets.Justia.com 1 of action: (1) employment discrimination based on age and disability in violation of California’s 2 Fair Employment and Housing Act (“FEHA”); (2) refusing to allow disabled employees to use 3 disabled parking in violation of California’s Business & Professions Code §17200; and (3) 4 refusing to allow disabled employees to use disabled parking in violation of California Civil 5 Code §51. Defendant has made a motion to dismiss the second and third causes of action and 6 seeking “clarification” of the first cause of action. Doc. 22. Plaintiff opposes the motion. The 7 matter was taken under submission without oral argument. 8 9 10 II. Legal Standards Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 11 plaintiff’s “failure to state a claim upon which relief can be granted.” A dismissal under Rule 12 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient 13 facts alleged under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 14 2001). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed 15 factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ 16 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 17 of action will not do. Factual allegations must be enough to raise a right to relief above the 18 speculative level, on the assumption that all the allegations in the complaint are true (even if 19 doubtful in fact)....a well-pleaded complaint may proceed even if it strikes a savvy judge that 20 actual proof of those facts is improbable” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 21 (2007), citations omitted. “[O]nly a complaint that states a plausible claim for relief survives a 22 motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the 23 Court of Appeals observed, be a context-specific task that requires the reviewing court to draw 24 on its judicial experience and common sense. But where the well-pleaded facts do not permit the 25 court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it 26 has not shown that the pleader is entitled to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 27 (2009), citations omitted. The court is not required “to accept as true allegations that are merely 28 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden 2 1 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The court must also assume that “general 2 allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Nat’l 3 Wildlife Fed’n, 497 U.S. 871, 889 (1990), citing Conley v. Gibson, 355 U.S. 41, 47 (1957), 4 overruled on other grounds at 127 S. Ct. 1955, 1969. Thus, the determinative question is 5 whether there is any set of “facts that could be proved consistent with the allegations of the 6 complaint” that would entitle plaintiff to some relief. Swierkiewicz v. Sorema N.A., 534 U.S. 7 506, 514 (2002). At the other bound, courts will not assume that plaintiffs “can prove facts 8 which [they have] not alleged, or that the defendants have violated...laws in ways that have not 9 been alleged.” Associated General Contractors of California, Inc. v. California State Council of 10 11 Carpenters, 459 U.S. 519, 526 (1983). In deciding whether to dismiss a claim under Rule 12(b)(6), the Court is generally limited 12 to reviewing only the complaint. “There are, however, two exceptions....First, a court may 13 consider material which is properly submitted as part of the complaint on a motion to dismiss...If 14 the documents are not physically attached to the complaint, they may be considered if the 15 documents’ authenticity is not contested and the plaintiff’s complaint necessarily relies on them. 16 Second, under Fed. R. Evid. 201, a court may take judicial notice of matters of public record.” 17 Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001), citations omitted. The Ninth 18 Circuit later gave a separate definition of “the ‘incorporation by reference’ doctrine, which 19 permits us to take into account documents whose contents are alleged in a complaint and whose 20 authenticity no party questions, but which are not physically attached to the plaintiff’s pleading.” 21 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005), citations omitted. “[A] court may not 22 look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in opposition 23 to a defendant’s motion to dismiss. Facts raised for the first time in opposition papers should be 24 considered by the court in determining whether to grant leave to amend or to dismiss the 25 complaint with or without prejudice.” Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003), 26 citations omitted. 27 28 If a Rule 12(b)(6) motion to dismiss is granted, claims may be dismissed with or without prejudice, and with or without leave to amend. “[A] district court should grant leave to amend 3 1 even if no request to amend the pleading was made, unless it determines that the pleading could 2 not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th 3 Cir. 2000) (en banc), quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other 4 words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, 5 Inc., 298 F.3d 893, 898 (9th Cir. 2002). 6 III. Discussion 7 8 9 10 Defendant argues that the second and third causes of action must be dismissed for failure to state a claim and, in the alternative, that the statute of limitation has run out. Defendant also seeks to have Plaintiff provide more detail as to the first cause of action. 11 12 13 A. Access To Disabled Parking Plaintiff alleges he “regularly purchases items at Wal-Mart, and company policy was and 14 is to encourage employees to shop and buy items from the store, which he has done on many 15 occasions” and that he “has been denied the right to park in the disabled parking spot, in 16 violation of [Section 51].” Doc. 20, Amended Complaint, at 3:13-16 and 6:1-2. This allegation 17 forms part of the basis for Plaintiff’s first cause of action (FEHA) and the sole basis for his 18 second and third causes of action (Cal. Bus. & Prof. Code §17200 and Cal. Civ. Code §51). At 19 root, Plaintiff relies on Cal. Civ. Code §51(b) (part of the Unruh Civil Rights Act, “Unruh”) 20 which states, “All persons within the jurisdiction of this state are free and equal, and no matter 21 what their sex, race, color, religion, ancestry, national origin, disability, medical condition, 22 marital status, or sexual orientation are entitled to the full and equal accommodations, 23 advantages, facilities, privileges, or services in all business establishments of every kind 24 whatsoever.” 25 Under well settled law, “the Unruh Civil Rights Act has no application to employment 26 discrimination.” Rojo v. Kliger, 52 Cal. 3d 65, 77 (Cal. 1990). Plaintiff makes a claim that 27 Unruh applies as he is both a customer and employee of Defendant as opposed to only an 28 4 1 employee.2 In briefing, Plaintiff states only that “Defendant fails to cite a single case prohibiting 2 Plaintiff, as a customer and employee, from bringing an action for violation of Civil Code §51.” 3 Doc. 23, Opposition, at 4:24-27. 4 Defendant argues that the operation of FEHA, which governs employment discrimination 5 and incorporates a well specified administrative claims procedure, precludes application of 6 Section 51 in this case: “Plaintiff’s attempt to expand the subject matter scope of these statutes to 7 incorporate his disability discrimination claim under Unruh would create an end-run around the 8 administrative procedures of FEHA solely for disability discrimination claimants.” Doc. 22, 9 Brief, at 6:23-25. Defendant’s argument is well supported in case law. See Alcorn v. Anbro 10 Engineering, Inc., 468 P.2d 216, 220 (Cal. 1970) (“at the same session wherein it adopted the 11 language of section 51, the Legislature also enacted extensive provisions governing 12 discrimination in employment. The Fair Employment Practices Act declares that the opportunity 13 to seek, obtain and hold employment without discrimination is a civil right and provides for 14 administrative procedures for relief from such discrimination....Although the Fair Employment 15 Practices Act can not be deemed to have repealed any provisions of the Civil Rights Act we 16 conclude that the concurrent enactment of the former act indicated a legislative intent to exclude 17 the subject of discrimination in employment from the latter act”); Bass v. County of Butte, 458 18 F.3d 978, 982 (9th Cir. 2006) (“FEHA provides an administrative scheme to process claims of 19 employment and housing discrimination. The statute creates two administrative bodies--the 20 Department of Fair Employment and Housing, and the Fair Employment and Housing 21 Commission--to investigate, adjudicate, and redress discrimination claims. FEHA requires that 22 an aggrieved claimant exhaust the administrative remedies provided by those bodies before filing 23 2 24 25 26 27 28 Plaintiff’s factual allegations are not completely clear. He does not specify if he was denied use of the disabled parking space only when he came to work or if he was denied use of the space altogether, even when he was not working and came in solely as a customer. Plaintiff does state “he personally has been harassed by a supervisor for shopping when he was not ‘on the clock.’” Doc. 20, Complaint, at 3:16-18. This could mean that Plaintiff was not permitted to park in the disabled spot when he came in solely as a customer and not as an employee, but that allegation is not clear. For the purposes of the analysis, the court assumes that Plaintiff is alleging he was denied use of the parking space only when he was working at the store. 5 1 an action in state or federal court. By contrast, neither the Unruh Act nor the DPA contains a 2 comparable administrative scheme”); Payne v. Anaheim Memorial Medical Center, Inc., 130 Cal. 3 App. 4th 729, 747 (Cal. App. 4th Dist. 2005) (“the issue of discrimination within the 4 employment relationship was excluded from [Unruh], not because it was undeserving of 5 attention, but because it was specifically addressed within a different statutory scheme”). 6 In examining the interplay between Unruh and FEHA, there appear to be two approaches. 7 In cases where plaintiff’s relationship with defendant is not clear cut, the Ninth Circuit has 8 concluded that “Unruh Act claims were appropriate where the plaintiff was in a relationship with 9 the offending organization similar to that of the customer in the customer-proprietor relationship 10 which the Act and its predecessors have most commonly covered.” Strother v. Southern Cal. 11 Permanente Medical Group, 79 F.3d 859, 874 (9th Cir. 1996). A California court, in dicta, 12 disagreed with Strother, finding that Unruh should apply when FEHA does not, even if the nature 13 of the relationship resembles that of employee-employer. See Payne v. Anaheim Memorial 14 Medical Center, Inc., 130 Cal. App. 4th 729, 748 n.10 (Cal. App. 4th Dist. 2005). Both 15 approaches lead to the same conclusion in this case. First, the nature of Plaintiff’s relationship 16 with Defendant at those times he is at the store working must be characterized as employee- 17 employer despite the fact that he might purchase some goods while on a break or during a lull. 18 Second, Plaintiff is plainly covered by FEHA; his first cause of action states a FEHA claim. 19 Thus, Plaintiff’s second and third causes of action must be dismissed. If Plaintiff alleges 20 that Defendant prohibited him from using the disabled parking spot when he came to the store 21 solely as a customer (for example, on his days off when he was not scheduled to be working), 22 then the analysis might be different. Plaintiff is granted leave to clarify his factual allegations in 23 this regard. 24 25 26 B. Statute of Limitations Defendant asserts the applicable statute of limitation for Cal. Civ. Code §51 is one year 27 citing to cases that do not discuss that section. Doc. 22, Brief, at 5:12-14. The Ninth Circuit 28 made reference in dicta to the “three-year statute of limitations governing claims under the Unruh 6 1 Act.” Olympic Club v. Those Interested Underwriters at Lloyd’s London, 991 F.2d 497, 502 n.11 2 (9th Cir. 1993). A more recent California case examined the question and noted that different 3 courts referred to different code sections as falling under Unruh; it concluded that “no single 4 statute of limitations applies to all. The one-year statute will apply to causes of action under 5 provisions that evolved from the common law; the three-year statute will apply to others.” Gatto 6 v. County of Sonoma, 98 Cal. App. 4th 744, 757-60 (Cal. App. 1st Dist. 2002). Cal. Civ. Code 7 §51(b) derives from common law and is subject to a one year statute of limitation. Id. Gatto’s 8 one year limitations period has been favorably cited by other courts. See Greenwald v. Bohemian 9 Club, Inc., 2008 U.S. Dist. LEXIS 44055, *17 (N.D. Cal. June 4, 2008); Wood v. Vista Manor 10 Nursing Ctr., 2006 U.S. Dist. LEXIS 76146, *15 (N.D. Cal. Oct. 5, 2006). As Plaintiff does not 11 dispute Defendant’s assertion that one year is the proper statute of limitation, the court adopts a 12 one year limitations period. 13 In this case, Plaintiff alleges “He has been ordered not to park in the designated Disabled 14 Persons parking spot, although he is [sic] been medically determined to be legally disabled since 15 2004.” Doc. 20, Amended Complaint, at 2:18-19. The statement is ambiguous. One 16 interpretation is that Plaintiff was determined to be disabled and ordered not to park in the 17 designated spot in 2004. Another interpretation is that Plaintiff was determined to be medically 18 disabled and ordered not to park in the designated spot at a later date. Under the first 19 interpretation, the claim would be time barred. Under the second, it may or may not be time 20 barred. Plaintiff does not shed light on what his statement in the amended complaint meant in 21 his opposition brief. In this circumstance, the claim should be dismissed with leave to amend to 22 allow Plaintiff to clarify his statement. 23 24 25 C. Clarification of FEHA Claim Defendant seeks “clarification” of the FEHA claim under the argument that “Plaintiff 26 must set forth the specific provision of FEHA that Defendant violated.” Doc. 22, Brief, at 9:19. 27 For support, Defendant cites to an inapplicable case dealing with FEHA burdens of proof at the 28 summary judgment stage of litigation. See King v. United Parcel Service, Inc., 152 Cal. App. 4th 7 1 426, 432 (Cal. App. 3d Dist. 2007). Under Fed. R. Civ. Proc. 8(a)(2) and federal notice pleading 2 standards, Plaintiff need only provide “a short and plain statement of the claim showing that the 3 pleader is entitled to relief.” Here, Plaintiff sets out his age and disability, alleges Defendant 4 refused to promote him due to his age and disability, and asserts Defendant retaliated against him 5 after he complained. See Doc. 20, Amended Complaint, at 1:1-17 and 4:20-5:7. These 6 allegations are sufficient to apprise Defendant of the nature of the claims; specific citation to 7 code sections is not required. 8 IV. Order 9 10 Defendant’s motion to dismiss is GRANTED in part and DENIED in part. The second 11 and third causes of action are DISMISSED with leave to amend. Any amended complaint must 12 be filed within twenty (20) days. If no amended complaint if filed by that date, Defendants are 13 directed to file an answer to this complaint (as narrowed by this order) within twenty (20) days of 14 that date. 15 16 IT IS SO ORDERED. 17 Dated: 0m8i78 September 17, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
